USA v. Troy Lockett

Filing 511131092

USA v. Troy Lockett

Doc. 511131092

Case: 09-40778

Document: 00511131092

Page: 1

Date Filed: 06/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40778 S u m m a r y Calendar June 3, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. T R O Y KEITH LOCKETT, D e fe n d a n t-A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 1:07-CR-66-1

B e fo r e DAVIS, SMITH and DENNIS, Circuit Judges. P E R CURIAM:* T r o y Keith Lockett was indicted for possessing a firearm after having been c o n v ic te d of a felony. See 18 U.S.C. § 922(g)(1). The indictment followed

L o c k e t t's arrest by the Groves (Texas) Police Department after a police officer s a w Lockett throw a weapon from the front, passenger-side window of a moving a u t o m o b ile and another officer found the weapon on the ground. c o n v i c t e d Lockett as charged. A jury

Lockett appeals the denial of his motion to

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

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s u p p r e s s evidence and appeals his conviction and sentence to 290 months of im p r is o n m e n t . We affirm. L o ck e t t urges five points of error. He contends that his conviction was the r e s u lt of an unconstitutional search and seizure and that there was not enough e v id e n c e to support the verdict. He contends further that the enhancement of h is sentence was improper because he did not have timely notice of the G o v e r n m e n t's intention to seek enhancement. Additionally, he contends that e n h a n c e m e n t was improper because the indictment did not properly allege that h e had prior convictions meeting enhancement criteria and because the fact of th o s e prior convictions was not determined by a jury; however, he correctly c o n c e d e s that this argument is foreclosed by precedent. See United States v. G a r z a - L o p e z , 410 F.3d 268, 276 (5th Cir. 2005). Last, Lockett contends that his s e n t e n c e was substantively unreasonable. O n appeal from a ruling on a motion to suppress, the district court's fa c t u a l determinations are reviewed for clear error and its legal conclusions are r e v ie w e d de novo. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003). T h is court may affirm the judgment on any basis established by the record. D a v is v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). There is no merit to

L o ck e t t 's arguments on this issue. First, contrary to Lockett's suggestion, no e v id e n c e was seized from his vehicle. The only physical evidence that was used t o convict Lockett, a .380 caliber handgun, was found on the ground where he h a d thrown it. This warrantless seizure of abandoned property did not violate th e Constitution. See Abel v. United States, 362 U.S. 217, 241 (1960); United S ta t e s v. Berd, 634 F.2d 979, 987 (5th Cir. 1981). And the existence of police p u r s u it or investigation at the time of abandonment does not of itself render the a b a n d o n m e n t involuntary. United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1 9 7 3 ). The police "in no way compelled" Lockett to jettison the gun. Id. S e c o n d , no evidence was introduced that was the result of an illegal d e te n tio n of Lockett. Although Lockett had standing to contest a seizure of his 2

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p e r s o n that resulted from the police stop, see Brendlin v. California, 551 U.S. 2 4 9 , 254 (2007), there was no evidence taken from his person. To the extent that L o c k e t t argues that the police legally stopped his vehicle and were able to id e n t ify him as a result, i.e., that his identity was improperly learned, he states n o constitutional violation. Limited searches and seizures are permissible if th e r e is a reasonable, articulable suspicion that a person has committed or is a b o u t to commit a crime. Terry v. Ohio, 392 U.S. 1, 21 (1968). In analyzing the r e a s o n a b le n e s s of a detention, we apply an objective standard: whether "the o ffic e r s [were] objectively authorized to act as they did viewing the totality of the c ir c u m s t a n c e s . " United States v. Holloway, 962 F.2d 451, 458 & n. 19 (5th Cir. 1 9 9 2 ) . An investigative detention is permissible if it lasts "no longer than [is] r e q u ir e d to effect the purpose of the stop." United States v. Jenson, 462 F.3d 3 9 9 , 404 (5th Cir. 2006). Further, if additional reasonable suspicion arises in the c o u r s e of the stop, the detention may continue until the new reasonable s u s p ic io n has been dispelled or confirmed. United States v. Brigham, 382 F.3d 5 0 0 , 507 (5th Cir. 2004) (en banc). T h e GPD officers' actions easily satisfy this standard. The GPD received a call advising that a resident was concerned because two men were repeatedly d r iv in g by his residence near midnight while he was outside working on his v e h ic le . The men's vehicle began to drive off when a GPD officer approached it. T h e officer saw the vehicle's only passenger pitch a shiny, chrome-colored object o u t the window. Another officer then found two guns on the ground where the c h r o m e - c o l o r e d object had landed. These facts created reasonable suspicion to d e ta in Lockett at least long enough to identify him. See Terry, 392 U.S. at 21. A s in Terry, although the conduct that prompted the stop was ambiguous a n d possibly innocent, the "the officers could detain [Lockett] to resolve the a m b ig u it y ." Illinois v. Wardlow, 528 U.S. 124, 125 (2000). Also as in Terry, the d e t e n t io n of Lockett was a "minimal intrusion" that permitted the GPD officers " t o briefly investigate further." Id. at 126. The only evidence in relation to 3

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L o c k e t t that was revealed by that brief stop was knowledge of his identity. That e v id e n c e was coupled with evidence that was obtained independently of the stop: t h e gun, which that Lockett himself provided by abandoning it, and the fact of h is prior conviction. In sum, the evidence used to convict Lockett was not ille g a lly obtained. L o c k e tt 's contention that the evidence was insufficient fails as well. E v id e n c e is sufficient to convict if any rational trier of fact could find that it e s ta b lis h e s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 3 1 8 (1979). Appellate review of the sufficiency of the evidence following a

c r i m in a l conviction is "highly deferential to the verdict." United States v. Redd, 3 5 5 F.3d 866, 872 (5th Cir. 2003) (internal quotation marks omitted). To convict fo r a violation of § 922(g)(1), the Government must prove that (1) the defendant h a d been convicted of a felony, (2) the defendant possessed a firearm in or a ffe c ti n g interstate commerce, and (3) the defendant knew that he was in p o s s e s s io n of the firearm. Ferguson, 211 F.3d at 885 n.4. It is undisputed that t h e Government satisfied the first two elements; Lockett stipulated to his prior fe lo n y , and there was unrefuted evidence that the handgun seen in his p o s s e s s io n had been manufactured in Connecticut and had thus traveled in in t e r s ta t e commerce. Therefore, the only matter seriously contested is whether t h e Government proved knowing possession. Given the police officer's

u n c o n tr a d ic t e d testimony that he saw Lockett pitch the gun out the window, the ju r y 's finding that Lockett was a felon who possessed a firearm withstands s c r u tin y . See United States v. Munoz, 150 F.3d 401, 416 (5th Cir. 1998) N o r is there merit to Lockett's contention that his due process rights were v io la t e d because he did not receive timely notice of the Government's intention t o seek enhancement of his sentence. The notice of enhancement that Lockett r e c e iv e d by way of the presentence investigation report satisfied the r e q u ir e m e n ts of due process. United States v. Howard, 444 F.3d 326, 327 (5th C ir. 2006). 4

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L o c k e t t asserts that his sentence of 290 months exceeds what is needed to s a t is fy federal sentencing goals and is therefore unreasonable. We disagree. S e n te n c in g decisions are reviewed for abuse of discretion. United States v. R o w a n , 530 F.3d 379, 381 (5th Cir. 2008). Being within the properly calculated g u id e lin e s range, Lockett's sentence is presumed to be reasonable. See United S ta t e s v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The district court, moreover, g a v e extensive consideration to the nature and circumstances of the crime and t o Lockett's criminal history and determined that the 18 U.S.C. § 3553(a) factors a n d the record before it counseled in favor of a sentence at the high end of the g u id e l in e s range. We see no reason to disturb that sentence; but even if we were t o accept Lockett's suggestion that a shorter sentence would have been more r e a s o n a b le , that would be insufficient justification for not deferring to the d is tr ic t court. See Gall v. United States, 552 U.S. 38, 51 (2007). T h e district court correctly denied Lockett's motion to suppress. Lockett's c o n v ic t io n and sentence are AFFIRMED.

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